which rendered them useless for the purpose for which the defendant required them, and afterwards sued the plaintiff for the amount. I think the plaintiff was entitled to be borne harmless against anything which he might properly pay in consequence of his situation of agent, without any default on his part. I cannot, I must confess, see that the plaintiff has been guilty of any default. There was nothing in his letter to justify Winter & Rich in tendering the article they did. The defendant, knowing all the circumstances, twice promises to bear the plaintiff harmless. An action having been brought by Winter & Rich, the defendant is informed of it, but does not choose to interfere; and in consequence, the plaintiff, in the bona fide exercise of his best discretion, and acting upon the best advice he could get, settles the matter by paying Winter & Rich 227. 108., and returning them the worthless goods; and he now brings his action to recover back that sum as money paid to the defendant's use. It appears to me that the liability the defendant was under to indemnify the plaintiff, extends to protecting him against the expenses and the trouble and annoyance of an action arising out of his agency in the matter, though that action was one to which he had a good defence. I think the defendant (Keble) ought to have taken upon himself the defence of that action; and that his failure to do so invested the *plaintiff with an implied authority to act *710] to the best of his judgment, and, if necessary, to pay the money he did pay. There was, I think, abundant evidence whence the jury might infer that the plaintiff, in the course he adopted with reference to Winter & Rich's action, acted under authority from the defendant to do the best he could, and that the case falls within the principle of Lewis. Campbell. Such authority is to be implied as much where a payment is made under a moral necessity, in consequence of its being a prudent thing to do, as where the payment is made under legal compulsion. If so, the case falls clearly within the reason of Lewis v. Campbell, and the verdict may be sustained.

CRESSWELL, J.-I think it very likely that justice will be best answered by discharging this rule; and I am not sorry that my Lord and my Brother MAULE have arrived at that conclusion, though, as at present advised, I am unable to do so, inasmuch as I cannot assent to the soundness of the principle on which their decision proceeds. No doubt, the plaintiff, in the first instance, conducted himself faithfully in giving the order for the goods; and I think Winter & Rich had sufficient information as to the description of plates that were wanted. The first letter well described them; and the second was not a perfect order without referring to the first. It seems to me, therefore, that Winter & Rich had no cause of action against the plaintiff, and that, if defence had been made, their action must have failed. But, though the defendant's undertaking to indemnify the plaintiff might have extended to the indemnifying him against the consequences of a defence to an action brought

against him for anything done by him as agent, which failed, it seems to me, that, there being no right of action, we are not at liberty in a court of law to assume that the verdict in *that action would have [*711 been against the now plaintiff. Nor do I think the defendant, by his promise to indemnify, made the plaintiff his agent to compromise an action in which there was a reasonable probability that the defence would have been successful.

TALFOURD, J.-I agree with my Lord and my Brother MAULE that this rule should be discharged. I do not think it necessary to say whether or not Winter & Rich, under the circumstances, had a good ground of action against the now plaintiff. I think there was evidence that the compromise was made with the authority of the defendant, express or implied. Looking at the whole transaction from beginning to end, I think the jury were well warranted in coming to the conclusion they did. And I think it cannot be doubted, that, under all the circumstances, it was a very wise and discreet compromise. It is by no means certain that the defence would have been successful. I therefore think there is no ground for disturbing the verdict. Rule discharged.

WICKENS, Demandant; WINDUS, Tenant; SIR JOHN SHELLEY and WIFE, Vouchees. May 28.

In the exemplification of a recovery, the name of the tenant was inserted in the place of that of the demandant, and vice versâ :-Held, that the defect,-which was apparent on the production of the deed to lead the uses,-was cured by the 8th section of the 3 & 4 W. 4, c. 74.

BROWN moved to amend a recovery by substituting in the exemplification the name of the demandant for that of the tenant, and vice versa. In the exemplification, which was produced in court, and which was dated Hilary Term, 7 G. 4, the parties were described as "William Plummer Wickens, demandant, James *Stephen Windus, tenant, [*712 Sir John Shelley, and Dame Frances, his wife, vouchees." The deed to lead the uses, which was also produced, showed that Windus should have been the demandant, and Wickens the tenant. There was also an affidavit explaining how the mistake arose, and stating that the title had been objected to on the ground of the variance. [JERVIS, C. J.-What necessity can there be for an amendment? Is not this precisely a case provided for by the 8th section of the 3 & 4 W. 4, c. 74, which enacts, "that, if it shall be apparent from the deed making the tenant to the writ of entry or other writ for suffering a common recovery already suffered or hereafter to be suffered, that there is in the exemplification, record, or any of the proceedings of such recovery, any error in the name of the tenant, demandant, or vouchee in such recovery, or any misdescription or omission of lands intended to have been passed VOL. IX.-30

by such recovery, then and in every such case the recovery, without any amendment of the exemplification, record, or proceedings in which such error, misdescription, or omission shall have occurred, shall be as good and valid as the same would have been, and shall be held to have passed all the lands intended to have been passed thereby, in the same manner as it would have done if there had been no such error, misdescription, or omission?" That clause was intended to meet a case of misdescription or misnomer. This is not a case of misnomer. [MAULE, J.—Is there not an error in the name of the tenant?] No. The names of both demandant and tenant are correctly stated, but erroneously placed. The 9th section saves the jurisdiction of the court to amend in all cases not provided for by the act. [MAULE, J.-If the court has power to make the amendment asked for, it is in respect of its being a mistake in the names of the parties, and therefore of necessity the error is remedied by the 8th section. In *Lockington, conusor; Ship*713] ley and Wife, conusees, 1 Scott, 263, 1 N. C. 355 (E. C. L. R. vol. 27); where, in the indentures of a fine, lands were described erroneously as situate in a parish different from that mentioned in the deed to lead the uses, the court refused to allow it to be amended,―holding the defect to be cured by the 7th section of the act; and in Evans, vouchee, 2 Scott, N. R. 83, the court refused to permit an old recovery to be amended by the insertion of a parish, the words of the deed being large enough to embrace it, and the omission being consequently cured by the 8th section. And TINDAL, C. J., in a subsequent case,-In re Twisden's Recovery, 4 N. C. 253 (E. C. L. R. vol. 33), 5 Scott, 638, says, that, "Where the error can be rectified by a comparison of the papers in the cause, the court will not amend; but, where the difficulty arises out of a latent fact, I think it falls within the 9th section of the act, and that the amendment may be made."] In Totton, dem., Vincent, def., 7 Scott, 835, 5 N. C. 626 (E. C. L. R. vol. 35), the court permitted a fine to be amended by introducing the name of an adjacent parish, the deed to lead the uses containing the words, "or any other adjoining parish," the land appearing to have been intended to pass, and possession having gone accordingly. [MAULE, J.-Even in that case, the court seem to have thought the amendment unnecessary. Where, upon production of the deed to lead the uses, the error or misdescription is apparent, an amendment is unnecessary: the statute provides for it. But, where the production of the deed will not cure the defect, the amendment may still be made under s. 9.]

JERVIS, C. J.—I think this is the case of an error in the names of the parties. The deed sufficiently shows *how it was intended *714] that the parties should be described. The defect, therefore, is remedied by the 8th section of the statute, and no amendment is necessary.

The rest of the court concurring,

Rule refused.

DOE d. BAKER v. COOMBES. April 18.

A., more than twenty years ago, without the permission of the lord, enclosed a small portion of the waste of a manor, on which he built himself a hut. In 1835, the encroachment having been presented at the lord's court, the then lord of the manor, accompanied by his steward, went to the premises, A.'s family being there, and, stating that he took possession, directed that a stone should be taken out of the wall of the hut, and that a portion of the fence should be removed. All this was done in the absence of A. The lord and his steward then retired, and nothing more was done :

Held, that the acts so done by the lord did not amount to a dispossession of A., and a resumption of possession by the lord, so as to entitle the latter to maintain ejectment within twenty years from that time.

THIS was an action of ejectment brought by the defendant, the lord of the manor of Pitfold, in the county of Surrey, to recover the possession of an acre of land, part of the waste of the manor, with a hut erected thereon, which had been many years occupied by the defendant.

The cause was tried before WILDE, C. J., at the last Spring Assizes for Surrey. The evidence was as follows:

The land in question, which was situate on a spot called Melcomb Bottom, forming part of the waste of the manor of Pitfold, in the county of Surrey, was enclosed, and the hut erected by the defendant, without the permission of the lord of the manor, considerably more than twenty years before the commencement of the action. In the year 1835, this encroachment having been presented at the lord's court, Mr. Pritchard, the then lord of the manor, accompanied by one Woods, the steward, went to the premises, and, finding the defendant's wife and *family [*715 there, he entered, and stated that he took possession, and directed that a stone should be taken out of the wall of the hut, and that a portion of the fence should be removed. All this was done without any objection being made on the part of Coombes, who was not then on the spot. Pritchard and the steward then retired.

His Lordship being of opinion that this was not such a taking of possession by Pritchard as to entitle the lessor of the plaintiff, who claimed under him, to maintain ejectment, directed the jury to find for the defendant, which they accordingly did.

Montagu Chambers, for the lessor of the plaintiff, now moved for a new trial, on the ground of misdirection.-The question is, whether that which was done by Pritchard in the year 1835 did not amount to such a taking possession of the land and hut by him as lord of the manor, as to determine the previous tenancy at will as between him and Coombes. [WILLIAMS, J.-What evidence was there of a tenancy at will?] A tenancy at will is to be inferred where a man continues in possession of land with the acquiescence of the lord, and without evidence of any other relation between them; and such tenancy will be assumed to continue until the contrary appears. If that be so, the possession of the defendant here dates only from the year 1835. Since

the 3 & 4 W. 4, c. 27, s. 10, (a) it is true, a mere entry is not enough to determine the tenant's possession. But here something more was done. The lord entered, and took possession as of his own property, without any dissent on the part of the tenant. He thereby acquired such a possession as would have *enabled him to maintain tres*716] pass. [TALFOURD, J.-Did he turn the defendant and his family out?] No; but he exercised acts of ownership. The distinction is taken in Co. Litt. 55 b:- There is an express ouster and an implied ouster; an express, as, when the lessor cometh upon the land, and expressly forewarneth the lessee to occupy the ground no longer; an implied, as, if the lessor, without the consent of the lessee, enter into the land, and cut down a tree, this is a determination of the will, for that it should otherwise be a wrong in him, unless the trees were excepted, and then it is no determination of the will, for then the act is lawful, albeit the will doth continue. If a man leaseth a manor at will, whereunto a common is appendant,-if the lessor put in his beasts to use the common,—this is a determination of the will. The lessor may, by actual entry into the ground, determine his will in the absence of the lessee; but by words spoken from the ground the will is not determined until the lessee hath notice. No more than the discharge of a factor, attorney, or such like, in their absence, is sufficient in law until they have notice thereof." Assuming this to have been a tenancy at sufferance, the acts done by Pritchard in 1835 would be a determination of that tenancy; and a new tenancy commenced at that period. [TALFOURD, J.-You would assimilate this to the case of Doe d. Bennet v. Turner, 7 M. & W. 226.†(6) *WILLIAMS, J.-You must *717] make out an original tenancy at will, and a new tenancy at will; and there is no pretence for either.] That which was done by Pritchard in 1835 was done for the express purpose of preventing any title growing against him.

WILDE, C. J.-I think this case admits of no doubt. The question turns upon that which took place in the year 1835. Up to that time there clearly was no tenancy at will. It appeared, that, at the time the enclosure was originally made, Coombes applied to the lord for leave to make it, and that it was refused, and the enclosure was made and the hut afterwards built without leave. His possession, therefore, was adverse; and, unless the acts done in 1835 deprive the defendant

(a) "No person shall be deemed to have been in possession of any land within the meaning of this act, merely by reason of having made an entry thereon."

(b) There, A., in 1817, let B. into possession of lands as tenant at will; and, in 1827, A. entered upon the lands without B.'s consent, and cut and carried away stone therefrom: and it was held, that this entry amounted to a determination of the tenancy at will, and that B. thenceforth became tenant at sufferance, until, by agreement, express or implied, a new tenancy was created between the parties; and, therefore, that, unless the fact of such new tenancy were found by the jury, an ejectment brought by A. in 1839 was too late, inasmuch as, by the statute 3 & 4 W. 4, c. 27, s. 7, his right of action first accrued at the expiration of one year after the commencement of the original tenancy at will, i. e., in the year 1818.